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Case detail



Directive article National ID 20Co/15/2013
Country Slovakia Decision date 30/04/2013
Common name Decision type Court decision in appeal
Court Krajský súd Prešov Plaintiff(s) EURO CASH s.r.o.
Court translation Regional Court in Prešov Defendant(s) Consumer, with participation of enjoined party Združenie na ochranu spotrebiteľa HOOS (Consumer Protection Association HOOS)
Subject court
Keywords judicial recoursejudicial review

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Headnote

In case it has been established that a commercial practice of a trader was contrary to the prohibition on unfair commercial practices, and the consumer has been convicted finally by a court without the court having considered such unfair commercial practice, then the consumer has the right to demand a retrial in case all other requirements for such a measure are fulfilled.

Facts

In a "payment order", rendered by the District Court in Prešov, the defendant (a consumer) was ordered to pay a sum of € 1.500 as well as a late payment interest, in relation to the execution of a credit agreement concluded with the plaintiff. The defendant did not file an opposition against this decision, which thus became final and enforceable.

However, the defendant found out later that the inclusion of one of the clauses in the contract that was the subject of the case, was to be considered as an unfair commercial practice.

The defendant contested the final judgment by a retrial petition, however the District Court in Prešov rejected it.

The defendant appealed to the Regional Court in Prešov.
 

Legal issue

Does the consumer have the right, in case it has been established that a commercial practice of a trader was contrary to the prohibition on unfair commercial practices, and the consumer has been convicted finally by a court without the court having considered such unfair commercial practice, to demand a retrial in case all other requirements for such a measure are fulfilled?

Decision

The court first reiterates that a retrial is an extraordinary legal remedy. However, a final judgment may be contested by a party to the judgment by a petition for retrial if, among others, there are "facts, decisions or evidence" that the party could not use, without any fault on the side of that party, in the original proceedings if these could produce a decision in the matter that is more favourable for the participant.

The court further held that government tribunals and courts, in order to raise quality of life, should be a "watchdog" to verify whether consumer contracts are balanced.

The court also referred to a decision of the Court of Justice of the European Union in Joined Cases C-240/98 to C-244/98 in which the ECJ ruled (point 26) as follows: "The aim of Article 6 of the Directive (Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts), which requires Member States to lay down that unfair terms are not binding on the consumer, would not be achieved if the consumer was himself obliged to raise the unfair nature of such terms. In disputes where the amounts involved are often limited, the lawyers' fees may be higher than the amount at stake, which may deter the consumer from contesting the application of an unfair term. While it is the case that, in a number of Member States, procedural rules enable individuals to defend themselves in such proceedings, there is a real risk that the consumer, particularly because of ignorance of the law, will not challenge the term pleaded against him on the grounds that it is unfair. It follows that effective protection of the consumer may be attained only if the national court acknowledges that it has power to evaluate terms of this kind of its own motion."

Based on the above, the court changed the ruling of the of the first judge and allowed the retrial.
 

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Result

If the consumer finds out that a contract clause that was subject matter of the case represents an unfair commercial practice once the court decision became final and enforceable, it forms an admissible reason for retrial allowance (following the fulfillment of other procedural conditions, for instance meeting the term).

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